State v. Weatherby

• Decision Date: 14 June 1939
• Docket Number: 36350,36349
• Parties: The State, Appellant, v. Glenn C. Weatherby
• Court: Missouri Supreme Court

129 S.W.2d 887

344 Mo. 848

The State, Appellant, v. Glenn C. Weatherby

Nos. 36350, 36349

Supreme Court of Missouri

June 14, 1939

Rehearing Granted, Reported at 344 Mo. 848 at 861.

Appeal from Osage Circuit Court; Hon. R. A. Breuer, Judge.

Affirmed (in part) and reversed and remanded as to other items.

Roy McKittrick, Attorney General, Drake Watson and James L. HornBostel, Assistant Attorneys General for the State.

(1) Neither the Governor nor Attorney General nor both of them had authority to employ the defendant. 59 C. J., pp. 170 172, 173, 174, secs. 285, 286, 287, 290; Department of Public Works Buildings v. Schlich, 194 N.E. 587; State v. Perlstein, 79 S.W.2d 143; Art. III, Mo. Const.; Sec. 48, Art. IV, Mo. Const.; Sec. 6, Art. V., Mo. Const.; State v. Bank of the State of Mo., 45 Mo. 528; State ex rel. Public Schools v. Crumb, 157 Mo. 545, 57 S.W. 1030; State ex rel. v. Hays, 52 Mo. 580; Aetna Ins. Co. v. O'Malley, 343 Mo. 1232; Sec. 11277, R. S. 1929; Cunio v. Franklin County, 315 Mo. 405, 285 S.W. 1007. And all money paid defendant, out of the Attorney General's appropriation, prior to defendant's lawful appointment as Assistant Attorney General was unlawful and he has no right to retain it. Cunio v. Franklin County, 315 Mo. 405, 285 S.W. 1007. (2) The statute conferring appointive authority on state officers must be strictly construed. Newark v. Civil Service Comm., 115 N. J. L. 26; County Board of Education v. Slaughter, 160 So. 760; State v. The Bank of the State of Mo., 45 Mo. 528; Authorities under Point 1. (3) Money appropriated for a specified purpose must be expended for that purpose and no other, and this rule was violated by the defendant in receiving from the appropriation to the Attorney General's office funds in payment of services to the Insurance Department. State ex rel. Publishing Co. v. Hackmann, 314 Mo. 53, 282 S.W. 1007; Sec. 19, Art. 10, Mo. Const. State ex rel. v. Holladay, 66 Mo. 385; Schwertz v. Chicago, 223 Ill.App. 192; State ex rel. v. Gordon, 236 Mo. 158, 139 S.W. 403. (4) A legislative appropriation of itself is not sufficient, but in order that it be lawfully paid out, there must be a statute, other than the appropriation act, authorizing the service and appropriation, and in the instant case there was no such authority. State ex rel. Davis v. Smith, 335 Mo. 1069, 75 S.W.2d 830; Sec. 11277, R. S. 1929; Sec. 19, Art. 10, Mo. Const.

Glenn C. Weatherby pro se.

(1) The court's action in sustaining the demurrer to counts one and two and to the item of $ 200 in count three was proper. (a) The counts to which the demurrer was sustained involved amounts paid to defendant under a contract employing him to represent the sovereign in the defense and prosecution of fire rate litigation. It was the duty of the Attorney General to represent the sovereign in such matters. He had the implied power to join in defendant's employment and to make the advancements sued for. Secs. 5678, 11275, 11276, R. S. 1929; Sess. Acts, 1931, p. 18, Appropriation to Legal Dept.; Ex parte Young, 209 U.S. 161; Terrell v. Sparks, 135 S.W. 519; State ex rel. v. Hackmann, 275 Mo. 649; State ex rel. Barrett v. Lbr. Co., 302 Mo. 204; State ex rel. Young v. Robinson, 112 N.W. 269; United States v. Water Power Co., 152 F. 28; Saxby v. Sonneman, 149 N.E. 526; Coulter v. Denny, 67 S.W. 65; State v. Murphy, 137 S.W. 709; Commonwealth v. Coal Co., 216 S.W. 584; State v. Jepson, 92 P. 600; People v. Board, 154 N.Y.S. 266; Kirby v. State, 125 N.Y.S. 742. (b) The action of the State Auditor in examining, auditing and approving each of the items sued for was quasi-judicial and cannot be attacked collaterally as is here attempted. Secs. 11399, 11404, 11481, R. S. 1929; State v. Hinkson, 7 Mo. 353; State ex rel. Keck v. Seibert, 130 Mo. 202; State v. Thompson, 337 Mo. 327; State ex rel. Gehner v. Thompson, 316 Mo. 1185; State ex rel. Publishing Co. v. Hackmann, 314 Mo. 33; 1 Freeman on Judgments (5 Ed.), 855; State ex rel. v. Ellison, 285 Mo. 301; State ex rel. v. Cass County Court, 137 Mo.App. 708; Ex parte Beck, 245 F. 967; State ex rel. Bybee v. Hackmann, 276 Mo. 110; State ex rel. Bradshaw v. Hackmann, 276 Mo. 600; 25 R. C. L. 388; State v. Moore, 40 Neb. 854; 25 L. R. A. 744; State ex rel. McDowell v. Smith, 334 Mo. 668. (c) Defendant was under no duty to take notice of any error or mistake the State Auditor made, if any, in determining the fund from which to pay the items in question. R. S. 1929, sec. 11404; Simpson v. Stoddard Co., 173 Mo. 461; State v. Thompson, 337 Mo. 337. (d) The defendant was employed to render a service that was legal, lawful and moral. He rendered the service and it was accepted by the State with full knowledge of the terms of the employment. The contract was fully performed on defendant's part and the money advanced to him was only in strict compliance with the contract. No action may be maintained to compel defendant to return such advancements, even though in the beginning the Attorney General may not have had power to join in the contract or to make such advancements out of appropriations to his department. Seaman v. Levee Dist., 219 Mo. 35; Kusnetsky v. Ins. Co., 281 S.W. 47; Sparks v. Jasper County, 213 Mo. 237; Union Natl. Bank v. Lyons, 119 S.W. 540; 5 Amer. Juris., p. 367, sec. 178; Winton v. Amos, 255 U.S. 393. (e) The State in this case has voluntarily placed itself in the position of an ordinary suitor. In such cases it is held to have laid aside its sovereignty and will be treated as an ordinary suitor on all proper matters of adjudication growing out of the cause sued on, and defendant is permitted to plead and prove all matters properly defensive. 25 R. C. L. 410, 411, secs. 46, 48; Moore v. Tate, 11 S.W. 935; State v. Kilborn, 69 A. 1028; State v. Holgate, 119 N.W. 792; In re Ash's Estate, 202 Pa. St. 922; 59 C. J., p. 318, sec. 474; State v. Bucholz, 210 N.W. 1006; State v. Schurz, 173 N.W. 408; People v. Auditor General, 38 Mich. 746; United States v. Moscow Seed Co., 14 F.Supp. 135. (f) If, as claimed by the State, the Attorney General caused the payments to be made out of appropriations to the legal department when, in fact, such payments should have been made out of appropriations to the Insurance Department, then the mistake should have been adjusted between those two departments. It would have been and still is a simple matter for the Legislature to make such adjustment by appropriation out of the Insurance Department fund to the general revenue to reimbruse the latter for the money paid from it by such mistake, if a mistake it was. (g) Had these advancements been made through the Insurance Department the general revenue would have remained the same. That much less would have been in the Insurance Department fund to transfer to general revenue on March 3, 1933. (2) The court erred in overruling the demurrer as to the item of $ 3000 in the third count of the petition and erred in rendering judgment against defendant for that item. Sec. 11274, R. S. 1929.

OPINION

PER CURIAM

This proceeding is one of several developing out of what is commonly known as the insurance rate litigation. [See, among the later cases, Aetna Ins. Co. v. O'Malley, 343 Mo. 1232, 124 S.W.2d 1164; State ex rel. v. Dinwiddie, 343 Mo. 592, 122 S.W.2d 912.] Glenn C. Weatherby, defendant, as one of the Assistant Attorneys General of the State of Missouri, had rendered legal services therein. He resigned as Assistant Attorney General on November 30, 1930. The Superintendent of the Insurance Department, with the approval of the Governor of the State, appointed him "Counsel for the Department for the purpose of enforcing the insurance laws of the State." He entered upon his duties on December 1, 1930, and his work was concluded in 1935.

On December 1, 1930, said Superintendent of Insurance and the Attorney General of the State of Missouri, as first parties, and defendant, as second party, entered into a written contract. It recited that the first parties, in their respective official capacities, had designated the second party as "special counsel" to represent them in certain suits involving the insurance laws of the State pending in the Federal and State courts, wherein said first parties were defendants, "and also in any and all proceedings now or hereafter brought" seeking the recovery of excess premiums collected by stock fire insurance companies pending the determination of the validity of a "ten per cent reduction order" of the Superintendent of Insurance, effective November 15, 1922; that said first parties desired to "bind themselves . . ., so far as they may legally do so, on the point of compensation of the second party" for services to be rendered as aforesaid; and the parties agreed:

"1. That the second party hereto shall be paid from time to time out of appropriations made by the General Assembly of the State of Missouri, and available for such purpose, such sums on account of services rendered and to be rendered, and with which to defray expense in connection with said suits above mentioned, as may be agreed upon by the parties."

The remaining portions of the contract are immaterial to the instant controversy.

Mr. Weatherby also furnished opinions to the heads of certain departments of the State government, other than the Insurance Department, at the request of the Attorney General during 1931 and 1932.

For services rendered the State during 1931 and 1932, Mr. Weatherby received between $ 1900 and $ 2000 from appropriations for the Insurance Department. He received out of appropriations for the Legal Department for services mentioned in the "contract" and expenses approximately $ 4200 in 1931 and $ 5900 in 1932; and for the "opinions" aforesaid $ 3000.

The State's petition sought the...